Dees v. Vendel, Civ. A. No. 91-2482-EEO.

• Decision Date: 27 September 1994
• Docket Number: Civ. A. No. 91-2482-EEO.
• Citation: 856 F. Supp. 1531
• Parties: Preston G. DEES, Plaintiff, v. Cornelius G. VENDEL, et al., Defendants.
• Court: U.S. District Court — District of Kansas

856 F. Supp. 1531

Preston G. DEES, Plaintiff, v. Cornelius G. VENDEL, et al., Defendants.

Civ. A. No. 91-2482-EEO.

United States District Court, D. Kansas.

June 30, 1994.

Memorandum Denying Reconsideration September 27, 1994.

COPYRIGHT MATERIAL OMITTED

Preston G. Dees, pro se.

Robert A. Olsen, Office of U.S. Atty., Kansas City, KS, A. Bradley Bodamer, Eric D. Braverman, Morrison & Hecker, Overland Park, KS, DeAnn E. Hupe Seib, Kansas State Bd. of Agriculture, Div. of Water Resources, Topeka, KS, Rogers L. Brazier, Jr., Kansas Dept. of Wildlife & Parks, Topeka, KS, Carl A. Gallagher, Office of Atty. Gen., Topeka, KS, for defendants.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, District Judge.

This matter is before the court on the motion for summary judgment by defendant Mark E. Johnson (Doc. # 116), and motions to dismiss by defendants Wisler, Sutherland, and Young (Doc. # 111), Brown, Gable, and Tatum (Doc. # 107), and O'Bryant and Holt (Doc. # 109). For the reasons set forth below, the motions will be granted.

The uncontroverted facts of the instant action are as follows. On December 29, 1989, Dees was arrested in Linn County, Kansas, for hunting without the proper permit and for resisting arrest. Special Agent Vendel of the U.S. Fish and Wildlife Service observed Dees and others shoot at a line of Canadian geese which flew over them. When Vendel approached them and asked to see their hunting permits, Dees produced an Indian hunting license which had the appropriate waterfowl stamps, but did not have the special Marais de Cygnes Valley dark geese permit required to hunt Canadian geese.

Agent Vendel then asked to see Dees' driver's license or some other form of identification. Dees refused to produce a driver's license or any other photo identification. Vendel explained to Dees that he could avoid arrest by producing a photo identification. When Dees continued to refuse to cooperate, Vendel arrested him and began to guide him toward Vendel's car. When Dees sat down and refused to move, Vendel asked two nearby security guards to call for back-up.

Defendant Johnson, a Conservation Officer with the Kansas Department of Wildlife and Parks, defendant Deputy Sheriff Holt, and defendant Deputy Sheriff O'Bryant arrived at the scene approximately twenty minutes later. Johnson knew Dees and talked with him in an attempt to gain his cooperation. Dees refused to cooperate and did not walk off the field on his own until Vendel and Johnson picked him up by his arms and started to carry him off. Vendel then informed Johnson that Dees was being arrested for hunting Canadian geese without a permit and for resisting arrest.

On July 23, 1990, plaintiff was convicted of hunting migratory game birds without a permit or stamp in violation of Kan.Stat.Ann. § 32-1008 and of obstructing legal process or official duty in violation of Kan.Stat.Ann. § 21-3808. The Kansas Court of Appeals affirmed the convictions and the Kansas Supreme Court denied plaintiff's petition for review. On December 31, 1991, plaintiff filed the instant suit alleging violations of his civil and constitutional rights with regard to his arrest and subsequent incarceration.

Claims against defendants in their official capacities.

In Hinton v. City of Elwood, 997 F.2d 774, 783 (10th Cir.1993), the court stated that a suit against a public servant in his or her official capacity is "simply another way of pleading an action against that entity." A claim against a public entity requires a showing that enforcement of a policy or practice by the entity caused the alleged violation of plaintiff's constitutional rights. See Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3104-05, 87 L.Ed.2d 114 (1985); Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978); Hinton, 997 F.2d at 783. Dees has not alleged any policy or practice of any government entity which lead to the alleged violation of plaintiff's civil rights. We, therefore, conclude that plaintiff's claims against all defendants in their official capacities should be dismissed.

Claims against defendants in their individual capacities.

Defendant Johnson seeks summary judgment on plaintiff's claims against him in his individual capacity. The constitutional validity of a warrantless arrest depends upon whether the arresting officer had probable cause. Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir.1985). Apparently, Dees seeks to establish that his arrest was unconstitutional because there was no probable cause to arrest him: Dees alleges that Agent Vendel was lying about seeing plaintiff shoot the geese and asserts that his hunting permit was valid.

Significantly, however, Dees was convicted of both of the charges for which he was arrested, i.e., hunting without the requisite permit and obstructing justice. The United States Supreme Court recently considered the question of whether a section 1983 claim for damages based on an improper arrest can be maintained when the plaintiff was convicted of the charges for which he was arrested. In Heck v. Humphrey, ___ U.S. ___, ___, 114 S.Ct. 2364, 2367, 129 L.Ed.2d 383 (1994), the Court held, "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction" has been invalidated. The example given by the Court was a state defendant who is convicted of resisting arrest. To prevail, such a plaintiff would necessarily have to negate an element of the offense for which he was convicted in order to show that the underlying arrest was improper. Id. ___ U.S. at ___, 114 S.Ct. at 2371 n. 6.

We do not believe that the Court's rationale is limited to the situation presented in Heck, i.e., the plaintiff was incarcerated, but applies with equal force in the instant case where the plaintiff is no longer incarcerated and is seeking only money damages. See also Cameron v. Fogarty, 806 F.2d 380, 388 (2nd Cir.1986), cert. denied, 481 U.S. 1016, 107 S.Ct. 1894, 95 L.Ed.2d 501 (1987) (In a § 1983 case, "where a civil rights plaintiff has been convicted of the offense for which he was arrested, we have in effect accepted the fact of that conviction as conclusive evidence of the good faith and reasonableness of the officer's belief in the lawfulness of the arrest."); Singleton v. City of New York, 632 F.2d 185, 195 (2nd Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981); Pouncey v. Ryan, 396 F.Supp. 126, 127 (D.Conn.1975) (summarily dismissing post-conviction § 1983 claim for false arrest).

In the instant case, Dees' convictions have not been invalidated. The final court to consider them, the Kansas Court of Appeals, affirmed the convictions. Dees cannot state a claim for violations of his civil rights based on his allegedly false arrest in the face of convictions which have not been invalidated. Accordingly, Johnson is entitled to summary judgment as a matter of law.

Even if plaintiff had raised a cognizable claim, Johnson is entitled to qualified immunity. The doctrine of qualified immunity recognizes the principle that government officials are protected from liability for civil damages unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

Once the defendant has successfully raised the defense of qualified immunity, plaintiff must come "forward with facts or allegations to show both that the defendants' alleged conduct violated the law and that the law was clearly established when the violation occurred." Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir. 1988). "The key to this inquiry is the objective reasonableness of the official's conduct in light of the legal rules that were clearly established at the time the action was taken." Laidley v. McClain, 914 F.2d 1386, 1394 (10th Cir.1990).

A claim of qualified immunity presents a question of law about whether the officer's actions were objectively reasonable. Dixon v. Richer, 922 F.2d 1456, 1460 (10th Cir.1991). Qualified immunity is "an immunity from suit rather than a mere defense to liability." Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir.1990). Thus, a defendant is spared the burden of going forward "unless and until the plaintiff is able to meet the burden of establishing that the defendant's alleged actions violated clearly established law." Gallegos v. City of Denver, 984 F.2d 358, 361 (10th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 2962, 125 L.Ed.2d 662 (1993).

Once plaintiff has met this burden, the defendant must demonstrate that no material issues of fact remain as to whether his actions were objectively reasonable in light of the law and the information he possessed at the time. A defendant who makes such a showing of objective reasonableness is entitled to summary judgment unless the plaintiff can demonstrate that there are factual disputes relevant to the defendant's claim to immunity. Martin v. Board of County Comm'rs, 909 F.2d 402, 405 (10th Cir.1990).

Plaintiff has wholly failed to respond to defendant Johnson's motion for summary judgment with specific facts establishing that Johnson violated clearly established law in his actions toward plaintiff. Plaintiff relies only on the following bare allegations in his response:

Officer Vendel has lied from the very beginning and the other defendants have abused the Judicial Process by attempting to support his lies and were never interested in the truth;

Officer Vendel has a history of making up stories to support his false allegations which could be proven by other hunters including Dr. Thomas McGuire, who was not allowed to testify, but was also wrongly accused by Officer Vendel;

Plaintif

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